T D v McCarron
[2012] ACTSC 112
•June 26, 2012
T D v THERESIA MCCARRON
[2012] ACTSC 112 (26 June 2012)
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 81 of 2011
Judge: Higgins CJ
Supreme Court of the ACT
Date: 26 June 2012
IN THE SUPREME COURT OF THE )
) No. SCA 81 of 2011
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:T D
Appellant
AND:THERESIA MCCARRON
Respondent
ORDER
Judge: Higgins CJ
Date: 26 June 2012
Place: Canberra
THE COURT ORDERS THAT:
1. The appeal is upheld.
2. A non-conviction order is substituted in relation to the conviction order previously imposed by her Honour Chief Magistrate Walker.
I will first look at the question of whether the original sentencing proceedings were tainted by error. I note that this offence carries a maximum penalty of one penalty unit which equates to $110 by way of a fine. The only conclusion to which the court could come was that it was a simple cannabis offence, as there was no specification of the quantity involved, and there is no evidence of any quantity that would exceed that required for a simple cannabis offence, namely, 25 grams.
I do not know that her Honour proceeded on the basis that it was anything other than a simple cannabis offence, although there may be some indication as to that a little later on.
Her Honour had the option of imposing a fine, pursuant to a conviction, imposing a good behaviour order simpliciter, or, proceeding by way of a non-conviction order and then either imposing a good behaviour order or proceeding by way of simple discharge. The actual penalty imposed was a 12 month good behaviour order on conditions to which I will come in a moment.
I note that the appellant was fifteen years of age at the time these sentencing proceedings took place. He was obviously a juvenile. He was accompanied by his mother, but not otherwise represented. The statement of facts was tendered by the prosecutor, but it is clear that there was no consent requested either from the appellant, or from his mother, but more of that a little later.
There was no formal tender of the statement of facts, although there was no objection to it either. I am not sure what the consequence that is urged upon me is in respect of that failure. It should have been done by consent, but I do not know whether anything followed from that.
There was a letter from the mother of the appellant, which was received and used by her Honour. The appellant was not asked to comment upon that. This put his mother in a very ambiguous position because she was in the position of being a witness, albeit not a witness formally called, but a person providing written information to the court. No doubt the information was very useful but it was not something which the young person was asked to agree with. Some of the matters which were presented, as has been put by Mr Toole in his submissions, amounted to a suggestion of uncharged criminal acts.
That ought to have been dealt with in a different way. Her Honour could have simply noted that she was receiving the letter from the mother of the appellant but disregarding the matters that might otherwise amount to uncharged criminal acts, on the basis that they were neither proved nor alleged. However, it is not clear what use her Honour made of it, save her comments about the letter itself, which was not terribly specific, but did seem to acknowledge the suggestion that the young person was addicted with whatever consequence there might have been in respect of that.
As Mr Toole submits, it is a requirement under s 74(b) of the Court Procedures Act 2004 that children and young people understand proceedings. It may well be that the appellant did understand the proceedings, but there was nothing said in the course of the proceedings that would have indicated that. It ought to have been done. There was no reference to the right of appeal from the order made, and that ought to have been done as well. So there were those errors, which were made in the course of the proceeding.
It may be added that the young person, in the circumstances understandably, was not advised of the position his mother was in, as the tenderer of a document containing observations relevant to the matter. He had a right to object to the document, in whole, or in part, and had the right to cross-examine the person who was tendering it, namely, his mother. That was not drawn to his attention either.
It is objected that her Honour failed to state the penalty that would otherwise have been imposed, but for the plea of guilty. It is true that was not averted to. I do not know what difference it would have made, but it may have made a difference to the length of the good behaviour order, or maybe to its terms. In any event, it was certainly not averted to, and it should have been, under s 37 of the Crimes (Sentencing) Act 2005.
Then there was the question of the weight to be attached to the plea. An interesting point made by Mr Toole is that the first search was not said to be consensual. It was submitted to, but that does not make it consensual. It may be that in the circumstances it was an unlawful search. I make no comment about that, because it would have needed a bit more examination of the circumstances to come positively to that conclusion. But it was an issue that might have been raised. If it had been raised, it could have resulted, theoretically at least, in a rejection of the evidence of the fruit of the search. This would have led to there being no useful charge that could be made against the appellant. It is said that adds to the utilitarian value of his plea. It may do, but, in any event, it was not mentioned.
The next, and central, question is whether the sentence was manifestly excessive in the circumstances. In support of that there is one matter, which her Honour made mention of, which does need to be corrected. Her Honour said in relation to the good behaviour order:
If you breach that order the worst thing that can happen, in relation to this, is that you come back and you be fined the amount and put on a further order.
It is not quite clear what the amount there is, but presumably a reference to the $110 fine.
The reference to a breach of the order was not entirely clear. It may be her Honour had in mind a breach of the terms as to abstinence that she had imposed, which I will return to in a moment. But to have committed a further simple cannabis offence would not have breached the order as it does not carry a term of imprisonment.
I do not know whether that is what her Honour had in mind, but if she did have that in mind it would have been erroneous advice which she gave. Not that that would necessarily affect the efficacy of the sentence, but it is something to which attention ought to be drawn.
Before I come to the question of the nature of the order itself, the other submission is that a term of the order was excessively wide. Reference is made there to the term of the order at [4] in the transcript where her Honour states:
He is not to consume alcohol, or non-prescription drugs, or medication including cannabis.
I do not know what medication includes cannabis, hopefully none. But if there is any, it would be a very strange thing if it was prescribed and you would not be allowed to take it. Non consumption of alcohol seems a little wider than that which related to the circumstances of the offending behaviour. Non-prescription drugs can include, as Mr Toole suggested, over the counter paracetamol, or other similar forms of medication, which are available over the counter. The intention, I would imagine, was to order that he should not consume cannabis, or any other illicit drug. If so, it should have been said.
I come to the question of what response ought to be made. The prosecution does not cavil with Mr Toole’s suggestion that a non-conviction order would have been appropriate. I note that the young person had no prior criminal history and that was conceded by the prosecutor at the outset. He was but fifteen years of age at the time.
Certainly, the primary purpose of any sentence her Honour had to impose was to be rehabilitative and I think that is what her Honour had in mind. But whether that required a conviction order, or only the good behaviour order that her Honour pronounced, with or without amendment, is a moot point.
Nevertheless, it does seem that the appropriate outcome, given the concession the prosecution makes, would be for a non-conviction order to be substituted and the appeal upheld, to that extent, but substitute the fourth condition, that he is not to consume cannabis, or any other illicit drug, rather than the condition as it is currently expressed. That makes it more relevant to his offending behaviour. Twelve months seems to be an appropriate time, even having regard to the plea of guilty, for supervision to take place.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 12 July 2012
Counsel for the Applicant: Mr M Toole
Solicitor for the Applicant: Legal Aid Office (ACT)
Counsel for the Respondent: Mr B Allison
Solicitor for the Respondent: Director of Public Prosecutions for the ACT
Date of hearing: 26 June 2012
Date of judgment: 26 June 2012
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